Richardson v. U.S.

• Decision Date: 19 March 2007
• Docket Number: No. CIV.A. 06-10993-WGY.,CIV.A. 06-10993-WGY.
• Citation: 477 F.Supp.2d 392
• Parties: Joanne RICHARDSON Petitioner, v. UNITED STATES of America Respondent.
• Court: U.S. District Court — District of Massachusetts

477 F.Supp.2d 392

Joanne RICHARDSON Petitioner, v. UNITED STATES of America Respondent.

No. CIV.A. 06-10993-WGY.

United States District Court, D. Massachusetts.

March 19, 2007.

COPYRIGHT MATERIAL OMITTED

Alexandra H. Deal, Max D. Stern, Stern, Shapiro, Weissberg & Garin, Boston, MA, for Joanne Richardson, Petitioner.

James B. Farmer, United States Attorney's Office, Boston, MA, for United States of America, Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

This is a case abounding in irony. It requires this Court, first, to figure out how the First Circuit would handle evidence of ineffectiveness of counsel — not in proceedings at the trial level — but in prosecuting an appeal before it; and, second, to consider whether petitioner Joanne Richardson ("Richardson") might benefit from re-sentencing before one of my colleagues.

These issues are not the ordinary grist of the district court mill. Yet, in the strange world of federal sentencing today they must be addressed, notwithstanding the indisputable facts that Richardson's trial and sentencing were utterly free from error and she was afforded greater procedural protections than the First Circuit now considers her due.

II. PRIOR PROCEEDINGS

The case against Richardson arose out of a more sweeping investigation of TAP Pharmaceutical Products Inc. ("TAP") for alleged Medicaid fraud.

TAP pled guilty on October 16, 2001 and was sentenced to pay a fine of $290,000,000 as well as submitting to numerous corporate oversight procedures as part of a subsequent probationary period. United States v. TAP Pharmaceutical Products Inc., No. 01-cr-10354 (D.Mass. Dec. 10, 2001) (judgment).

The government was far from through.

The government had earlier conferred immunity on Richardson and called her before the grand jury `on October 31, 2000 and December 19, 2000 to testify concerning the activities of her superiors, co-workers, and the doctors whom she solicited on TAP's behalf.

On June 25, 2002, the grand jury indicted Richardson for perjury for making false statements to the grand jury. Her case was eventually assigned to this session of the Court. United States v. Richardson, 421 F.3d 17, 23-25 (1st Cir.2005) (detailing procedural history).

On October 2, 2001, the grand jury had indicted seven other employees of TAP for Medicare fraud. That case was randomly assigned to another session of this Court. A superseding indictment on July 16, 2002 named an additional six defendants. One of the defendants in that case pled guilty and ultimately testified for the government against her co-workers.

Richardson went to trial first. On January 23, 2004, following a seven-day trial, the jury found her guilty of perjury for making false statements to a grand jury but acquitted her of obstruction of justice.

Later, in the spring of 2004, this Court became convinced that the mandatory United States Sentencing Guidelines ("Guidelines") were unconstitutional and at once began building in additional procedural protections for defendants. On June 18, 2004, five days before the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), this Court held the mandatory Guidelines unconstitutional for marginalizing the jury's fact finding function. United States v. Green, 346 F.Supp.2d 259 (D.Mass.2004). Buoyed by Blakely, this Court promptly proceeded to "Blakelyize" the Guidelines, requiring submission of sentencing enhancing factors to the jury in each subsequent criminal case¹ in an effort to harmonize the then-mandatory Guidelines with the Constitution's structural requirement of trial by jury. U.S. Const., Art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ...."); see Robert J. Anello & Jodi Misher Peikin, Evolving Roles in Federal Sentencing: The Post Booker/Fanfan World, 1 Fed. Cts. L.Rev. 301, 334-35 (2006) [hereinafter, Evolving Roles] (discussing "Blakelyization"). This Court's procedural approach was well known to the Office of the United States Attorney and the local criminal defense bar during this period.²

Richardson was sentenced on April 29, 2004: Because her case involved no sentencing enhancement factors, this Court focused on `the then-mandatory Guidelines and sentenced Richardson to six months in prison, followed by two years of supervised release, the first four months of which was to be served in home confinement. Richardson's sentence also included a fine of $3,000 and a special monetary assessment of $100: This sentence was somewhat higher than the bottom of the applicable Guidelines range. The Court did, however, stay the execution of this sentence pending her appeal.

Richardson promptly appealed. The First Circuit heard oral argument on her appeal nine days before the decision of the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On August 30, 2005, the First Circuit affirmed Richardson's conviction. 421 F.3d 17.

Meantime, the government had pressed on with its case against the other TAP personnel. Extensive pre-trial proceedings followed in which the court severed one defendant from the others. A thorough fifty-two day trial followed against 11 defendants, during which three defendants were acquitted or dismissed. After three days of deliberation, the jury acquitted the remaining eight defendants. United States v. MacKenzie, et al., No. 01-cr-10350 (D.Mass. July 14, 2004) (verdict). Thereafter, the district judge presiding allowed the cooperating defendant to withdraw her plea. United States v. Chase, No. 01-cr-10350 (D.Mass. Sept. 14, 2004) (vacating guilty plea). The final defendant, who had been severed from the others, pled guilty and was sentenced. United States v. Romano, No. 01-cr-10350 (D.Mass. Feb. 16, 2005) (judgment).

III. DISCUSSION

On January 12, 2005, the Supreme Court issued its decision in Booker, dramatically altering the constitutional status of the Guidelines. This Court has already discussed the complexities of the Supreme Court's dual holdings in Booker and need not do so again here.³ Despite these complexities, the Supreme Court held in Booker, inter alia, the mandatory nature of the Guidelines unconstitutional and made the Guidelines advisory.

One of the many questions that arose out of Booker was the status of all those individuals whose convictions had become final during the time when the Guidelines were mandatory. The First Circuit has now decided this issue, holding that Booker does not apply retroactively. Cirilo-Munoz v. United States, 404 F.3d 527, 533 (1st Cir.2005). A second question Booker raised was whether an individual convicted pre-Booker who has not exhausted his or her final appeal may use the change in the status of the Guidelines as a basis for appeal. In United States v. Martins, 413 F.3d 139, 153-54 (1st Cir.2005), the First Circuit set forth a framework governing analysis of such situations. Thus, the law is largely settled with respect to these two questions.

The present case, however, presents a unique situation involving a petition for resentencing under 28 U.S.C. § 2255 that alleges ineffective counsel for failure to raise the new status of the Guidelines on appeal.

In her present habeas petition, 28 U.S.C. § 2255, Richardson claims that her attorney, Jeremy Margolis ("Margolis"), provided ineffective assistance of counsel at trial and, on appeal. Mem. in Supp. of Def.'s Motion for Relief Pursuant to 28 U.S.C. § 2255 [Doc. No. 2] ("Petition"). In response, the government argues Richardson does not meet her burden of proving ineffectiveness of counsel. Government's Opposition to Def.'s Motion for Relief Pursuant to 28 U.S.C. § 2255 [02cr-10211, Doc. No. 222].

During the hearing on this petition, Richardson narrowed the scope of her petition simply to argue that her counsel's failure to argue Booker on appeal resulted in ineffective assistance of counsel. While the fact pattern surrounding Richardson's motion — namely that Booker was decided during her appeal and her counsel failed to argue this change in the law — is somewhat novel, the First Circuit's framework in Martins provides guidance for this Court.

A. Ineffective Counsel Claims Under 28 U.S.C. § 2255

A district court may grant relief under 28 U.S.C. § 2255 in four circumstances. First, when "the sentence was imposed in violation of the Constitution or laws of the United States." Hill v. United States, 368 U.S. 424, 426, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Second, when "the court was without jurisdiction to impose such sentence." Id. Third, when "the sentence was in excess of the maximum authorized by law." Id. at 426-27, 82 S.Ct. 468. Fourth, when "the sentence is otherwise subject to collateral attack." Id. It is the fourth circumstance that this Court must address in the present case. Richardson alleges that Margolis' failure to file supplemental briefs concerning Booker constituted ineffective assistance of counsel and violated her Sixth Amendment rights.

A claim under 28 U.S.C. § 2255 is subject to the "cause and actual prejudice standard" when the petitioner failed to make a timely objection. United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Cause and prejudice, however, need not be shown when the underlying claim alleges ineffective assistance of counsel. Smullen v. United States, 94 F.3d 20, 23 (1st Cir.1996) (citing Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994)). Judicial review of an ineffective assistance claim is highly deferential and every effort must be made "to eliminate the distorting effects of hindsight." Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052.

To prevail on an ineffective assistance of counse...